Staff were notified that if they were not vaccinated by October, their employment could be terminated
by Rhonda B. Levy and Barry Kuretzky of Littler
An arbitrator recently issued the first award in Ontario to address and uphold the reasonableness of a hospital vaccination policy that provides for the termination of employment for non-compliance. In Lakeridge Health and CUPE, Local 6364, 2023 CanLII 33942, Arbitrator Robert Herman found, however, that a four-week leave of absence should have been implemented prior to the termination of the employees’ employment, but he did not order remedial relief.
Background
In June 2021, the hospital introduced the first version of the mandatory vaccination policy (Policy), which required employees to attest to their vaccination status. If they were not vaccinated, they would be required to take protective measures, but they would not be required to be vaccinated.
In September 2021, the Policy was revised to provide for mandatory vaccination. On October 1, 2021, employees were notified that if they were not vaccinated by October 29, 2021, their employment could be terminated. As of October 29, 2021, employees who were not vaccinated were placed on an unpaid leave of absence. Between November 1, 2021 and November 17, 2021, employees who were still unvaccinated or did not indicate that they were willing to become vaccinated were let go.
Union’s Position
Initially, the union argued that it was unreasonable that the Policy placed unvaccinated employees on unpaid leaves of absence in October 2021, and that those employees who remained unvaccinated were fired. In its final submissions, however, the Union changed its position to acknowledge that unvaccinated employees (who did not work remotely) could reasonably have been placed on unpaid leaves of absence until June 2022, when they should have been returned to active employment.
Award
Arbitrator Herman upheld the Policy as reasonable in respect of the termination of employees for non-compliance.
In doing so, he found that circumstances in the months preceding the Policy’s issuance and when it was issued were relevant to an assessment of its reasonableness. For example, by September 2021, COVID-19 had been present for more than 18 months and had serious and continuing health risks for employees and patients; from July 23 to November 3, 2021, the more transmissible and severe Delta variant was dominant; effective and safe vaccines were available to frontline health care sector employees in March 2021, and to all hospital employees as of June 2021, and two doses provided significantly greater protection than any other measures.
On August 17, 2021, Ontario’s Chief Medical Officer of Health issued Directive #6 issued, effective as of September 7, 2021, requiring all hospitals to establish mandatory vaccination policies for employees, and employees to provide written proof of a medical exemption or to attend educational sessions about vaccination; with 17% of Lakeridge’s employees unvaccinated or with their vaccination status unknown, Lakeridge was having serious staffing issues, which made it difficult to continue to provide essential health care services; other hospitals in the area had announced mandatory vaccination policies; and Lakeridge required about 1,300 unvaccinated employees to have weekly Rapid Antigen Tests, which created a significant workload for its already inadequate staff.
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The arbitrator found the Policy reasonably applied to all employees, including those who worked remotely as they might occasionally have to come into Lakeridge, and be redeployed to onsite work so Lakeridge could continue to provide service.
Arbitrator Herman also held that the case law that establishes that discipline is never appropriate for failure to take medicine or be vaccinated could be distinguished “in the context of a pandemic that had already caused significant numbers of deaths and life-threatening illnesses, both of patients and staff who worked in hospitals, and continued to do so.” He emphasized, “The Policy was designed to protect the health and safety of both employees and patients, when vaccinations were the most effective protective measure, against transmission, against becoming infected and against the potentially life-threatening consequences of becoming infected.” The arbitrator also noted that, “Employees were already required to be vaccinated by the Hospital for numerous diseases, so being required to get vaccinated for health and safety reasons would not be a new Hospital requirement.”
Arbitrator Herman agreed with Lakeridge, “…that it would have been materially more difficult to fill vacant positions if the Hospital could only offer temporary positions of indefinite length rather than permanent positions.” He distinguished Chartwell Housing REIT v. Healthcare, Office and Professional Employees Union, Local 2220, UBCJA (discussed here), in which the arbitrator noted that the evidence did not establish that if employees were left on indefinite leaves of absence there would be potential problems with recruitment or retention.
The arbitrator also found the circumstances before him “distinguishable in material respects from the circumstances addressed in other decisions that have considered the reasonableness of automatic termination as part of a vaccination policy,” as they “did not arise in the context of a hospital providing essential, potentially life-saving, health care services to the public during the pandemic, when there were already significant staff shortages…”
Finally, Arbitrator Herman stated that he did not believe that individual circumstances (other than exemptions based on religious or medical grounds) should prevent or nullify a leave or termination that is a reasonable part of a mandatory vaccination policy or provide a mitigating factor against terminations. He provided the following examples of such individual circumstances: long service; a clean disciplinary record; an employee relying on misinformation; or an employee having “a real fear” of vaccination or concerns about their safety.